The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

See the Succession to the Crown Bill which had its 1st reading in the House of Commons on 13th December 2012. As Bills go, this is a short one: a mere five clauses and one schedule. The Bill, as introduced in December 2012, may be read here.

Clause 1 - will remove the ancient rule of male primogeniture and make succession to the Crown no longer dependent on gender. Clause 2 - removes the bar on succession to the Crown as a result of marriage to a Roman Catholic. Clause 3 - requires the Sovereign to consent to a marriage by a person who, at the time of the marriage, is one of the 6 next in line of succession to the Crown. The Bill does NOT seek to alter the rule that the Sovereign must be in communion with the Church of England and therefore the government argues that the proposed changes to the rules of succession do not
affect the role of the monarch as Supreme Governor of the Church of England.

It appears thatHRH The Prince of Wales has expressed certain concerns over aspects of this though, reports emphasise, he supports the general idea that succession should not depend on gender. The concerns are set out in the lead article in The Daily Mail 7th January 2012 and see also Telegraph 7th January. The Mail's article indicates that Prince Charles believes that altering the rules could have 'unintended consequences' that have not been properly considered.

One issue noted by Prince Charles relates to a future heir to the Crown marrying a Roman Catholic. Interestingly, his concern was also raised in the Political and Constitutional Reform Committee's 11th report on Rules of Royal Succession which reported in late 2011 stating -'Catholics
are normally obliged under canon law to bring up as Catholics any children from
an inter-faith marriage. The proposal thus raises the prospect of the children
of a monarch being brought up in a faith which would not allow them to be in
communion with the Church of England. This would prevent them from acceding to
the throne.'

The Committee noted that this requirement of canon law can
be waived by the Pope, although it also noted that some other religions impose
similar requirements.

It is reported that Prince Charles was informed, by Richard Heaton (Permanent Secretary to the Cabinet Office), of the possibility of resolving such problems by negotiation with the Vatican and it is said that he found this "unsatisfactory and unconvincing". One wonders how the possibility of the Vatican having some say in whether a particular individual might be able to succeed to the British Crown is likely to sit with people in some parts of the British Isles.

The Queen has an undoubted right to be consulted, to encourage, and to warn as Walter Bagehot (1826 to 77) put it. The views of Her Majesty are unknown to the public. However, Prince Charles is right to express his concerns at future possibilities as he sees them.

A further concern relates to the succession to hereditary peerages generally. The normal arrangement - (there are some exceptions) - is that succession is again subject to male primogeniture. Hereditary peerages are perhaps of little importance these days except to those who have them. The vast majority of hereditary peers lost their ancient right to sit in the House of Lords as a result of the House of Lords Act 1999 though some 92 remain. Nevertheless, there would be the odd arrangement of succession to the Crown not being gender dependent whereas succession to most hereditary peerages would be.

The legislation also does not address the question of titles customarily given to the Sovereign's eldest son - i.e. the Duchy of Cornwall, Prince of Wales etc. What would be the position where the Sovereign's first born was a daughter?

The government's bill has not been the subject of any public consultation and, within Parliament, there appears to be only the Political and Constitutional Reform Committee's 11th report on Rules of Royal Succession. The 11th report referred to one of the very problems now being raised by Prince Charles. It looks as though the government's rush to legislate has blinded them to addressing an already identified issue and which might become a future significant constitutional issue.

The 11th report welcomed the changes and stated: - 'The changes being proposed are modest, but
they will remove two elements of discrimination in determining the succession
to the throne, while maintaining its traditional hereditary character.'

A very detailed House of Commons Research Paper (RP 12/81) may be accessed via this link.

Once the Bill is passed, it will come into force on a date to be coordinated with all the other "realms" of which HM The Queen is Head of State. Those other States will have to amend their own laws relating to the succession.

About Me

There are no aspects of modern life untouched by law. My main interests are criminal law, constitutional law, human rights, family law, European Union law and some aspects of international law.
In law, the word "obiter", refers to remarks which are "by the way." My own comments are also "by the way" - I write about events which happen to interest me. I do not seek to dictate or even to persuade: merely to comment and inform and this blog must never be used as a substitute for professional legal advice.
Please note that responsible comments are welcome and they are published after moderation. The blog does not accept any advertisements.